McLean reflects an older, more limited concept of ELL liability, common in other cases of the era. See, e.g., Wells v. Nibler, 189 Or. 593, 598 (1950) (holding that sawing a limb from a tree was not dangerous as a matter of law, noting "[f]rom time immemorial men, women and children have climbed trees and sawed off limbs without anything further required than agility and a saw"), overruled by Quick v. Andresen, 238 Or. 433, 440 (1964) (discussed below).

Barker v. Portland Traction Co., 180 Or. 586, 609-10 (1946). The narrow view holds that "ELL protection is available only to '(1) employments which are attended with inherent risks and dangers, [and] (2) employments which are rendered hazardous through the use of machinery, scaffolding, dangerous substances, electrical devices, or other equipment and substances which are expressly enumerated in the act.'" Id.; Quirk v. Skanska USA Bldg., Inc., No. 3:16-CV-0352-AC, 2018 WL 2437537, at *8-9 (D. Or. May 30, 2018) (explaining that McLean v. Golden Gate Hop Ranch of Or., 195 Or. 26 (1952), reflects an older, more limited concept of the ELL liability along with other cases in that era including Wells v. Nibler, 189 Or. 593 (1950), which relied on Hoffman v. Broadway Hazelwood, 139 Or. 519 (1932)). For Anderson's work to come under the ELL, her work must be so "'inherently dangerous or present[ ] dangers so uncommon that the employment would be classed as work involving "risk or danger[.]"'" Travis, 2000 WL 1853084, at *7 (quoting Kruse v. Coos Head Timber Co., 248 Or. 294, 304 (1967)).

Id. "Ordinarily, whether or not an employment involves risk and danger is a jury question, but where the court can say that the facts, as a matter of law, do not involve inherent risk and danger, it is its duty to so rule." Wells v. Nibler, 221 P.2d 583, 584 (Or. 1950). For an employee to recover under ORS § 654.305, the work must have "inherent risk or danger".Wells, 221 P.2d at 584 (citing Williams v. Clemen'sForest Products, Inc., 216 P.2d 241, 243 (Or. 1950); see also Union Oil Co. v. Hunt, 111 F.2d 269, 274-275 (9th Cir. 1940) (Oregon's Employer Liability Act "applies only to employments involving a risk or danger, and which are inherently dangerous, whether due to or caused by machinery or otherwise, and comprehends hazardous occupations in general, specifically enumerated or otherwise."). "Although, . . .all work involves risk and danger, after bestowing careful attention upon the ambit of the words just quoted, held that they apply only to employments which are inherently dangerous."

In a minority of cases, the Oregon Supreme Court has found as a matter of law that work did not involve risk or danger; in some of these cases, the risk-creating propensity of the work at issue is arguably not materially distinguishable from that in other cases where "risk or danger" necessarily raised a question of fact. See Wells v. Nibler, 189 Or. 593, 598 (1950) (reversible error to permit jury to decide whether sawing a limb from a tree involved risk or danger; holding that such work was not inherently dangerous as a matter of law); see also Short, 235 Or. at 87-88 (feeding pigs did not involve risk or danger as a matter of law); McLean, 195 Or. at 34 ("ordinary farming" did not involve risk or danger as a matter of law); Barker v. Portland Traction Co., 180 Or. 586, 604 (1946) ("removing . . . snow from [a] clogged [streetcar] switch" did not involve risk or danger as a matter of law); O'Neill v. Odd Fellows Home, 89 Or. 382, 390 (1918) (using a rickety stepladder to hang laundry out to dry did not involve risk or danger as a matter of law). Here, Golden's duties required him to slide a heavy gangway along a metal track located underneath a conveyor belt used to transport gravel debris of a kind that could and occasionally did foul the track, all at an elevated height.

See Pittsburg, C., C St. L.R. Co. v. Rushton, 90 Ind. App. 227, 148 N.E. 337, 340-41 (1925); State v. Pashall, 118 Conn. 645, 174 A. 175, 177 (1934). Cf. Barry v. Oregon Trunk Railway, 197 Or. 246, 255, 253 P.2d 260 (1953); Wells v. Nibler, 189 Or. 593, 599, 221 P.2d 583 (1950); Longfellow v. Huffman, 57 Or. 338, 343, 112 P. 8 (1910). See also ORS 16.660.

Norman v. Cunningham Sheep Co., 233 Or. 385, 377 P.2d 916 (1963); Short v. Federated Livestock Corp., 235 Or. 81, 383 P.2d 1016 (1963). Defendant relies heavily upon Wells v. Nibler, 189 Or. 593, 221 P.2d 583 (1950). There, the plaintiff was directed to climb a locust tree on defendant's farm and trim some limbs.

That degree of care is required only of those operations which involve "risk or danger." We quote the following from Wells v. Nibler, 189 Or. 593, 221 P.2d 583: "The above act has been considered many times by this court, and many opinions have been written concerning its provisions, and it would serve no good purpose to review all of them.

Should it be applied to the general farming occupation of the plaintiff, or should it be applied to and decided on the basis of the work and labor actually being performed by the plaintiff at the time of the accident? Many of the recent Oregon cases have passed upon this question, and we hold that it should be and is the rule in this state that the question of whether risk and danger are involved is determined by the specific thing or work being done by the employee at the time of the injury rather than the general name of or general type of work the employee was originally hired to do. Barker v. Portland Traction Co., 180 Or. 586, 173 P.2d 288, 178 P.2d 706; Williams v. Clemens' Forest Prod., Inc., 188 Or. 572, 216 P.2d 241, 217 P.2d 252; Wells v. Nibler, 189 Or. 593, 221 P.2d 583; McLean v. Golden Gate Hop Ranch, Inc., 195 Or. 26, 244 P.2d 611; Snyder v. Prairie Logging Co., Inc., 207 Or. 572, 298 P.2d 180. Some of the above cases hold that the work engaged in did not involve risk and danger, and some hold that it did; but they are all authority for the principle that it is the specific work engaged in when injured that controls in determining the question of risk and danger, rather than the general name or character of the original employment.

Manifestly, if this court should determine, as a matter of law, that the evidence is insufficient to submit the question of defendant's liability to the jury as a question of fact, and that defendant's motion for a directed verdict should have been sustained, it would then be unnecessary to consider plaintiff's several assignments of error. Wells v. Nibler, 189 Or. 593, 221 P.2d 582. We shall, therefore, first direct our attention to that phase of the case.

Ordinarily, the question of whether or not a particular employment is inherently dangerous is for the jury to decide, but where from the established facts the court may say, as a matter of law, that it does not involve risk or danger within the meaning of the "and generally" clause, it is the court's duty to so declare. Wells v. Nibler, 189 Or. 593, 597, 221 P.2d 582; Williams v. Clemen's Forest Prod., Inc., 188 Or. 572, 589, 216 P.2d 241, 217 P.2d 252; Hoffman v. Broadway Hazelwood, 139 Or. 519, 10 P.2d 349, 11 P.2d 814, 83 ALR 1008. Justice BRAND fully reviewed our prior decisions involving a question similar to that now before the court.